I N Scotland: The Plea Of Provocation

The need for partial defence in murder cases has evolved through the common law and statue, in consideration of the weaknesses of the human mind to take control when faced with provocation and the challenges created by mental illness, which may result to serious violent. Court in England and Wales have experienced several difficulties in defining what “intention” (human mind) is in order to establish conviction for murder (R v Molony) 1985. This essay will therefore, discuss the need for partial defences to murder as “a buffer against the harsh effect of the mandatory life sentence for all cases of murder” in England and Wales.

In determining if there were reasonable grounds for defence, the jury may have regard to the deceased’s general reputation for violence. In Blyton’s case, his father was a ‘bad alcoholic with a temper’ and had a history of domestic abuse. Blyton’s defence argued that this history contributed to Blyton’s heightened awareness of danger and lead to an instinctive reaction by Blyton to stab his father when rushed.

Provocation was previously controlled under S2 of the homicide act 1957, the act stated where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. The new defence S54-56 Coroners and Justice Act 2009 replaced defence of Provocation S3 Homicide Act 1957; it came into force October 2010.

William Shakespeare’s Macbeth has always been considered one of the literary worlds most celebrated tragedies. It is arguably the darkest and most gruesome of his plays. The protagonist, Macbeth, is the poster child for tragic hero, “a literary character who makes an error of judgment or has a fatal flaw that, combined with fate and external forces, brings on a tragedy” (www.dictionary.com). And until recently we were satisfied with that… At the Cannes Film Festival in 2001, a low budget comedy was unveiled. It was called Scotland, PA. This film was written by a first-time director, Billy Morrissette, and depicts the familiar story in a surprisingly different form.

Both the Scottish Parliament and Visit Scotland show two different images of modern Scotland. The parliament appeals to the Scottish people and try to improve the Scottish economy. Visit Scotland directed at tourists and is rather stereotypical. They do not convey a true image of modern Scotland. They are trying to appeal to two different audiences but they are making mistakes and this is causing Scotland to suffer. Throughout this essay is going to contemplate and examine how both the Scottish Parliament and Visit Scotland have a direct and significant impact on how the image of modern day Scotland is portrayed.

Despite recent reforms on the law of murder and voluntary manslaughter; including the special defence of diminished responsibility and loss of control, there are still inconsistencies present making the law unsatisfactory. This area of the law is in ‘dire need of reform’; as pointed out by the Law Commission in their 2006 report; Murder, Manslaughter and infanticide. The report stated how ‘The Law governing homicide in England and Wales is a rickety structure built upon shaky foundations.’

The recently passed ‘Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters)’ arose within a highly politicized context and has led to controversy. The amendment was introduced in response to a perceived increase need to legislate on deaths caused by king hit punches or “coward’s punch”. It amends both the Crimes Act 1958 (Vic) and the Sentencing Act 1991 (Vic), by defining a punch to head or neck as dangerous act, introducing a mandatory minimum sentence of 10 years for manslaughter by one punch, and increases the mandatory minimum sentence for manslaughter by gross violence to 10 years . However, there is likely little need for this legislation, as pre-existing law was already capable of dealing with the offence, and the implementation of this legislation will likely fail to effectively achieve its purpose. Moreover, the introduction, or increase, of a mandatory sentence will be unlikely to effectively deter individuals, and will remove the courts discretion regarding sentencing. In this essay I will argue that the legislation is unneeded to prosecute those who king hit others, and that it will likely fail to have its intended effect.

Under this act the defence of Provocation has been abolished (s.54). The requirement of the loss of control needing to be ‘sudden’ has been removed (s.54(2)) this change will make the defence more available to abused partners who kill in self-defence. This was an issue in the Ahluwalia case where eventually a diminished responsibility plea was accepted after a lengthy appeal and retrial. The new defence has also tightened the law (under s.55(6))so the loss of control defence can not be used in cases where someone has killed for revenge – as in the case of Ibrams and Gregory or for marital unfaithfulness as in the case of Davies. This may now have dealt with the long term suggestion that, due to its historical background and the nature of men as more likely to “snap” in anger, that provocation was a male orientated defence. Another major criticism of the previous defence of provocation was the reasonable person test (objective test). Prior to the new defence this part of the provocation defence was left in confusion with the House of Lords decision in Smith(Morgan) conflicting with the Privy Council decision in Holley and then the Court of Appeal following Holley rather than Smith(Morgan) thus departing from precedent. This may now be resolved because the new defence of loss of control under s.54(1)(c) seems to confirm the legal principle set out in Holley and Camplin.

The Act intends to answer the needs of increased severity in punishment regarding the one punch hits. In order to successfully apply this, the Act proposes amendments to the Sentencing Act that would impose mandatory minimum sentences for ‘one punch’ manslaughter cases in circumstances where an offender knew that the victim was not expecting the punch or strike, and died as a result of the blow. The bill alters the Sentencing Act to accommodate a statutory least non-parole period sentence of 10 years for homicide including horrible brutality and murder by single punch or strike where the Director of Public Prosecutions has pulled out to the court of an aim to look for the burden of the statutory least sentence if the charged is discovered liable and where extraordinary circumstances, as accommodated in the bill, don 't exist.

However, the validity of the chivalry thesis is questioned by Box (1981) who reviewed the data from self-report studies in the UK and USA. He concluded that ‘the weight of evidence on women committing serious offences does not give clear support to the view that they receive differential and more favourable treatment’. This claim is supported by Graham and Bowling study which found that females were less likely than men to be involved in the more serious offences. The seriousness of the offence could explain the lower proportions of females among the convicted and cautioned than among self-reported offenders rather than leniency in the criminal justice system.

The Law Commission had proposed removing the loss of control criteria completely. This was because it was recognised that women in abusive relationships may kill from a combination of anger fear, frustration and a sense of desperation. The government decided not to follow this proposal. D must prove loss of self-control. The only concession is that loss of control need not be sudden. It is probable that some abused women will not be able to use the defence.

The accused, Hugo McHale, is guilty of the wilful and premeditated murder of Peter Wilson. Through the analysis of McHale’s motive, means and opportunity, it will become clear that not only did McHale kill someone, but he had also intentionally set out to do so. Throughout the course of this arduous trial you have endured a relentless argument in defence of Hugo McHale, son of the late business magnate Henry McHale and accused murderer of former Altus Properties Chief of Staff, Peter Wilson. The defence have sculpted the seemingly perfect image of an emotionally vulnerable young man with diminished capacity, plagued by the unexpected death of his father. But what the defence

The hypothesis is more easily stated than proved. For obvious reasons, there are no precise data on the intention of an attacker toward his vic- tim-whether he wished to wound or injure, with some apprehension of the risk of death or some desire to kill, or whether he single-mindedly intended to kill at any cost. Either of these mental states would be con- sistent with a finding of murder if homicide results. But the more am- biguous intention might well lead to the termination of an attack before lethal consequences ensue. The barroom fight ends when one of the two participants has been stabbed, shot, or beaten into submission.3 At that point the issue has been decided. Similarly, the violent domestic dispute may end decisively without fatal

The reform on homicide in Corners and Justice Act 2009 is criticised as ‘a dog’s breakfast’, ‘all over the place’ and ‘beyond redemption’. Among other things, s.54-s.56 of CJA 2009 replaces old defence of provocation with a new partial defence including loss of control. This essay supports exclusion of sexual infidelity in s.55(6)(c). After setting out the general legislative background, this essay emphasises the difference between sexual infidelity and sexual jealousy, and then moves on to examine the morality attached to sexual infidelity the modern society. The extent of the exclusion and the interpretation of s.55(6)(c) in case law are also reviewed. Lastly, there is a comparative study between other jurisdictions and England in this specific area.

Scotland has always been seen as one the main European countries and a major part of the United Kingdom. Scotland was an independent country up until the year 1701 when the Act of the Union was signed forming the United Kingdom. The original countries in the United Kingdom include England, Wales, Northern Ireland, and Scotland. Scotland is also well known as the home of golf. Golf can be traced back to Scotland all the way back in 1457. In this report we will talk about the vast culture of Scotland and how they compare to us, the economy of Scotland and how they make a living as a country and as citizens, and also about their government and how they are similar to us and differ from us.